from the myths dept

One of the general rules that we try to follow here on Techdirt is to avoid anything that has to do with "partisan politics" or debates that involve "Democrats" v. "Republicans." Thankfully, many of the tech issues that we discuss don't fall neatly into one camp or the other -- issues around intellectual property, privacy, innovation and surveillance seem to have supporters and detractors on both sides of the traditional aisle. Sometimes that's because the issue is so "new" that it hasn't been twisted and distorted into a partisan fight yet. Sometimes (more frequently) it's because these issues aren't ones that get enough attention at all. Net neutrality was like that in the early days, a decade ago. It was a legitimate concern that was being raised about broadband providers potentially abusing market power. Somewhere around 2004 or 2005, however, something shifted in the debate, and it suddenly became a "partisan" issue with Democrats tending to be "for" net neutrality and Republicans tending to be against it. At this point, the debate became stupid. This often seems to happen with partisan issues. Once the "Parties" take over (and this is true of both parties), pretty much all debate on the relevant facts goes out the window, and it all becomes hyperbole and rhetoric. That has absolutely been the case with the net neutrality debate as well.

So, while we don't normally dive into any kind of partisan spin on things, because the rhetoric has become absolutely ridiculous on net neutrality, it seemed worth discussing why the Republican claims that reclassification under Title II is some sort of "government takeover of the internet" or "regulating the internet" are just wrong. And we'll go one step further and point out why Republicans should actually be standing right along side their Democratic colleagues in supporting reclassification. This shouldn't be a partisan issue at all, but a bipartisan effort to make sure that the internet remains free and open for true innovation and competition (the kind of thing that both parties should agree on).

We'll start by pointing to a fantastic article from James Heaney, a self-identified conservative, who goes into great detail explaining why free marketers should support reclassification of broadband access by the FCC. He covers a lot of ground that we've discussed before, but does so in a clear and concise manner that makes it easy to read. In short, he notes that free markets and competition are great for innovation -- and that while regulation can often get in the way of those things, so can monopoly power. Further, he highlights how internet infrastructure is effectively a natural monopoly (just like we discussed... a decade ago). And, thus, it makes sense to have very limited regulation to keep the natural monopoly from getting out of control and more importantly, to stop the natural monopoly from hindering all sorts of other innovation. Heaney's argument goes into a lot more detail, including a discussion of why the FCC was crazy wrong in its 2002 decision to declare cable a Title I "information service" rather than a Title II "telecommunications service," and why now is the time for the FCC to correct that mistake. Either way, he notes, the nature of broadband -- like highways or electricity -- makes it clear that it's a natural monopoly:

That’s because – guess what! – internet service is a market where natural monopolies prevail. Just like with the electric company, most of the cables and most of the network are already purchased and deployed. Adding a new customer often means literally just flipping a switch at HQ, or – at most – laying a few yards of cable to an existing network. In the end, the more the company sells, the less it costs them. Over time, the big companies beat the small ones on cost, gobble them up… then lobby the government to freeze out potential competitors, while jacking up costs and slashing service quality,.

If you have ever interacted with Comcast in any way, you already know about their “service” “quality” – the infinite wait times, the incompetent “help,” the constant upselling, the blatant lies (usually about credits they promise), the desperate measures. Since they are our local monopoly, I don’t hear too much about the other monopolists out there, but I understand Time-Warner isn’t any better. It is a fact that customers despise their ISPs on average:

What you may not realize is that they are overcharging you, too, like textbook monopolists.

From there, he points out that often the best way to deal with natural monopolies is through the threat of a government crackdown, rather than actual regulation. This was actually a position that we supported for a long time as well. I can't seem to find a reference to it now, but I'm pretty sure that this was the suggestion of Professor Ed Felten as well, noting that a sort of "Sword of Damocles" dangling above broadband providers' heads might be the best form of net neutrality as we learned more. However, as Heaney notes, we have learned more and that plan has now failed, thanks to the appeals court ruling in favor of Verizon (Heaney incorrectly says it's Comcast -- possibly confusing it with a different net neutrality lawsuit). And, thus, he notes, without the hovering threat, the playing field is now open for monopoly-power abuse -- which is the kind of thing that Republicans and conservatives should be against:

So now the delay-and-harass strategy has failed. The monopolists have a blank check from the law, and they are exploiting it with tremendous rapacity (as we’ve seen in the series of Netflix stickups, which picked up the moment net neutrality collapsed). Perhaps the next most attractive option is to pull a Reagan and just break up the major ISPs into smaller companies. Unfortunately, there is no obvious legal way to do that. The Bell breakup resulted from a lot of special circumstances, some plain-as-day antitrust violations, and an 8-year court battle. Moreover, breakup would probably not solve the problem: the wee ISPs would still have local monopolies in many areas, and economics 101 would force them to immediately begin reconsolidating into new national monopolies (as the Baby Bells are doing today). In the long run, the consolidation and price gouging of natural monopolies are probably inevitable. It’s a cold, heartless law of economics: the same laws that allow the government to increase revenues by cutting taxes will eventually compel certain telecom markets to become monopolies, no matter how many times we break them up.

Given that, he notes, the next best option is Title II. He notes, correctly, that the early days of the internet saw growth and investment in broadband thrive under Title II (contrary to claims to the contrary) and how the telcos today still beg to be classified under Title II for parts of their infrastructure:

To sum up, the only reason the Internet isn’t protected from monopolies today is because, in 2002, the FCC decided to experiment with not regulating the Internet. Almost immediately thereafter, the telecoms began fighting the core Internet principle of network neutrality, aiming to take control of the Internet for themselves and impose monopoly prices on consumers. All attempts to restrain them outside of Title II have failed. The Wall Street Journal regularly argues that the Internet has thrived because ISPs have never been regulated like phone companies. This is false, and the Journal should know better. Indeed, the years of the Web’s most explosive growth and development happened under the auspices of strict common carrier regulation, identical to those of phone companies. (Heck, even today, limited portions of Verizon’s high-speed fiber network, FiOS, fall under Title II!)

The fix to the growing monopoly problem is very, very easy, and several courts have pointed to it over the past several years: simply revisit the obviously nonsensical ruling of 2002. Overturn it, and (correctly) decide this time that Internet Service Providers are “telecommunications providers”. Instantly, every ISP in America would go back to common carrier status, and net neutrality regulation wouldn’t just become easy; in many ways, neutrality is baked into Title II. The FCC would gain many tools to reduce the risk of natural monopoly where it doesn’t exist, or its effects where it does. The market would be saved, the consumer freed from the tyranny of monopoly.

His full piece is much longer and well worth reading, but I have one further quibble with it, which gets back to the underlying claim about all of this that Title II is somehow "regulating the internet." It's not. It's never been about that at all. Quite the opposite, in fact. It's about choosing which form of regulation internet infrastructure will be ruled by. The anti-net neutrality crew like to make this mistake (and they make it often), trying to pretend that internet infrastructure is the internet. It's not. And internet infrastructure has always been heavily regulated, often out of necessity. In order to allow a cable company or a telco to install broadband infrastructure, local cities and towns often did special deals, handing over subsidies, rights of way, pole rights, tax breaks, franchise agreements and other such things to the broadband players. The idea that internet infrastructure has ever been "a free market" is laughable. No matter what kind of infrastructure was being installed, it's always relied on some sort of deal with government in exchange for access. As such, it's entirely sensible to argue that there should be certain requirements in exchange for such public support for their network, and that includes keeping the network itself free and open to use.

And that's really what net neutrality is all about. It's not about "regulating the internet," but making sure that the big broadband players don't "regulate" the internet themselves, by setting up toll booths and other limitations, allowing them to pick the winners and losers. It's about blocking monopolistic powers from putting in place systems to extract monopoly rents that harm the public and limit innovation and consumer surplus. Net neutrality frees the internet from such monopolistic regulations by putting common carrier rules at the infrastructure level to make sure that there's true competition and freedom at the service level. And that makes total sense, because you don't want competition of natural monopolies, you want to make sure natural monopolies don't block competition.

Given that Republicans like to claim that they're pro-innovation, pro-business and pro-competition, they should absolutely be in favor of net neutrality as well because it creates the environment where there will be real competition and innovation at the service level. The argument that they're using against it is to pretend that Title II regulates "the internet" when it really just changes the existing style of regulation for internet infrastructure, preventing a few monopolistic powers from squeezing monopoly rents from everyone else. Normally stopping monopolies is supposed to be a key tenant of conservative economics. It honestly seems like the only reason that isn't the case here is because big broadband lobbyists have carefully spun this tale (and heavily funded some campaigns) to pretend that what they're trying to stop is "regulation of the internet."

from the wake-up-authoritarians dept

Rep. Justin Amash has been one of the most involved and active voices in Congress on pushing back against the intelligence community's overreach and attack on our civil liberties. Many folks know him for the Amash Amendment, which would have defunded the NSA's bulk collection of phone records under Section 215 of the PATRIOT Act. While it was narrowly defeated, it certainly woke up many in Congress to the fact that the surveillance scandal was a real deal. Over the last year, though, we'd been hearing more and more stories about how the "mainstream Republicans" were looking to unseat Amash in the primaries. Amash is often identified as being in the "Tea Party" wing of the party, and sometimes described as more "libertarian."

The very powerful US Chamber of Commerce targeted Amash as an "easy target" to oust, arguing that his views on civil liberties put him at odds with the (many) conservative voters in his district. The primary attack on him focused heavily on Amash's support for civil liberties, directly arguing that such protection of our civil liberties meant he was "supporting terrorists." Here, for example, is a campaign ad his primary opponent Brian Ellis used against him, quoting someone referring to Amash as "Al Qaeda's best friend in Congress" and claiming Amash wanted to "shut down American intelligence for monitoring terrorists." It quotes a veteran saying: "It makes no sense. We were out there fighting for the country and he's voting against anything that would help us."

It's exactly the kind of campaign that you might expect would work in a heavily conservative, "American values" kind of district that Amash represents, if you believe in the traditional narratives and stereotypes. However, that effort failed miserably, and as Conor Friedersdorf explains, that's a good sign for civil liberties. There's this ridiculous narrative that "conservative" voters are in favor of surveillance and against protecting civil liberties, but that's always been a silly argument. Protecting civil liberties isn't "supporting terrorists," it's a fundamental concept in the Constitution and should be seen as an American value that cuts across any partisan divide.

His easy primary victory already matters because it shows that Republicans who want to rein in the NSA, repeal the Patriot Act, and close the prison at Guantanamo Bay can win a primary vote handily—even in a safe Republican district where a shameless opponent tries to portray them as siding with the enemy.

Amash's victory in the primary gives a bit of hope for civil liberties. It suggests that voters aren't the stereotypical morons that the traditional narratives often make them out to be. They can understand how protecting civil liberties should be a truly American ideal and it doesn't mean you're supporting terrorists. Earlier this year, the Republican National Committee came out against bulk surveillance by the NSA. It's increasingly becoming clear that the narrative that "Republicans have to support surveillance" is not an accurate story at all.

from the up-is-down,-left-is-right dept

Geoffrey Stone, one of the members of the White House task force which suggested that the President needed to end the Section 215 bulk collection of phone records, has said that he was told that the White House rejected that plan because they viewed the report as "liberal."

“And instead of our report being truly understood as a middle ground, based upon taking into account all of those perspectives on both sides of the spectrum, I think the White House got moved by thinking of our report as a liberal report,” Stone said.

God forbid a supposedly "liberal" President actually do something he considers "liberal." And, indeed, it seemed that his non-proposal in which he pretends to reform NSA surveillance was predicated on not pissing off the hawkish conservatives who tend to support the surveillance state.

So... what happens now that the supposedly conservative, hawkish, surveillance state-loving Republican Party has agreed that the program is unconstitutional and should be shut down?

To some extent, it really does seem to go back to the corruption of power. Those in power always seem to trust themselves not to abuse that power -- and unthinking automaton partisan hacks seem to flip their position based on whether their guy or the other guy is power.

There's been an insanely stupid debate over the past few weeks as to whether or not folks like Ed Snowden, Glenn Greenwald and Julian Assange were somehow "ideologically pure" enough to be supported by liberals -- which highlights the monumentally asinine level of political discourse in the country these days, further highlighted by President Obama rejecting the task force's opinions as being "too liberal."

As can be seen by the flip-flopping of "liberals" and "conservatives" over the surveillance state, the entire concept of those labels is really no different than if you're rooting for the orange team or the yellow team. It's like the old joke about how if you root for a sports team, you're really rooting for the laundry. People focused on whether something is "liberal enough" or "conservative enough" are wasting everyone's time. These issues are not about being "liberal" or "conservative." They're about doing what's right. It's not about partisan politics or which team you play for or root for. It should be about what is best for the country and the wider world in which we live.

It's incredibly disheartening that we seem to live in a world where that aspect is barely considered but what color your team is matters the most.

from the terrible dept

Orin Kerr has pointed out that people who self-identify themselves as "liberals" or "conservatives" seem to shift their opinion on NSA surveillance depending on whether or not it's "their guy" in the White House. That is, back when George W. Bush was President, "Democrats" disapproved of the NSA's surveillance activities, with only 27% approving it. "Republicans" on the other hand, had a 75% approval of the NSA's activities, which were known to include warrantless wiretapping. Fast forward to today, and we have "liberals" being split down the middle between being concerned and not concerned, but conservatives having 77% either "very concerned" or "somewhat concerned" about the surveillance (48% falling into the "very concerned") category. Kerr notes that the two surveys may not be completely comparable -- the questions were not identical, and one study was based on political party, while the other was based on ideology (which might not match up). But, at the very least, it does suggest a general sense that people are much more comfortable with surveillance when "their guy" is in power, and against it when they dislike the President.

That's troubling on any number of levels, but hopefully it serves as a point to a useful tool in convincing those who trust "their guy" not to abuse the system: just ask them how comfortable they'll be when "the other guy" is in power after the next election?

from the three-years-of-content-is-not-really-an-'archive' dept

It appears the UK Conservative Party isn't quite finished "archiving" its history into the nearest memory hole. Last week, it was discovered that PM David Cameron's party's webmasters had sent speeches made from 2000-2010 into the ether, aided by an altered robots.txt that kept Google from crawling its pages and prompted a retroactive deletion of the corresponding pages from the Internet Archive.

On Wednesday, Chris Grayling said that there is "a limit to how much you can put and keep on your website year after year", and a Conservative spokesman claimed that the changes to the website were to "allow people to quickly and easily access the most important information we provide – how we are clearing up Labour’s economic mess, taking the difficult decisions and standing up for hardworking people.”

Yes, storage limits can be an issue, but it's hard to believe the party currently in power in the UK can't afford to purchase more. Furthermore, if storage is such an issue, let YouTube handle the storage/bandwidth and just host links at the website. Finally, storing text takes next to no space at all, so this excuse doesn't really pan out for all the (text only) speeches the Conservatives removed last week.

The second statement is nothing but spin, so nothing to see here. And the spokesmen didn't have much to say when confronted with previous non-theoretically-storage-related actions.

When asked about the YouTube deletions and why it was necessary to remove webpages from the Internet Archive, a spokesperson for the Conservatives declined to comment.

What this looks like is a swift rewrite of history ahead of the general election. ComputerWeekly, which broke the news of the first Conservative history cull, suggested the party was attempting to bury Cameron's old campaign promises, which revolved around openness and transparency. The Guardian has another theory.

Jim Killock, executive director of the Open Rights Group, pointed out that the material is still available on the UK Web Archive, a project run by the British Library to archive British websites.

Nonetheless, he said: "The suspicion has to be that at the point they are engaged in a huge debate about mass surveillance … they are removing the videos where they criticise Labour for doing the same thing. That's why it's absolutely important that that material remains available."

Sadly, it's not just one political party refurbishing its past. The Labour party has been busy as well.

Labour has also edited its news archive. The party's new website only goes back to September 2010, leaving Ed Miliband's keynote at the party conference that year the oldest speech available. But unlike the Conservatives, Labour didn't require internet archivists to remove stored versions, leaving pages dating back to July 2002 in the database.

Archives for both are still available elsewhere, but the public-facing sites themselves are now willfully incomplete. The digital age may have promised a future of transparency and openness, but both parties have chosen to use these tools to craft flattering narratives and spirit away inconsistencies.

from the time-for-a-change dept

I've argued in the past that copyright is a non-partisan issue, in that the concepts behind fixing a broken copyright system shouldn't be specific to either major political party. Unfortunately, historically, that's meant that there's been bi-partisan interest in helping Hollywood expand the system over and over and over and over again (15 expansions in the last 30 years). However, as we saw over the weekend with the wonderful RSC brief that was released and retracted in a day, there is significant interest in some circles to explore the idea of substantial copyright reform, which includes recognizing that the existing system is not functioning up to the standards set forth in the Constitution.

Eli Dourado calculating that the system we have today likely far exceeds what we need in order to offer authors an incentive to create

Tom Bell suggesting five reforms for copyright, including returning to the Founders’ vision of what copyright should be

It's good to see more analysis of why the copyright system is in dire need of reform. While I still think this should be a non-partisan issue, rather than a strictly partisan one, it's interesting to see one side of the political spectrum popping up at this time to make the argument. Over the past few years, it's seemed like many of the arguments in favor of copyright reform came from the more liberal/progressive side of the spectrum anyway, so hopefully this "balances" out the calls for reform a bit and makes it clear: the time to fix the copyright system is now, no matter what your political persuasion might be.

from the speaking-out dept

If you follow the political world these days, you'd think that there was nothing out there that a "bleeding-heart liberal" and a "Tea Party conservative" might agree on. But it appears that the hugely problematic PROTECT IP Act is bringing together such diverse interests. David Segal and Patrick Ruffini -- who probably don't agree on very much at all politically -- teamed up to write an editorial about the problems of PROTECT IP, for OregonLive. The editorial notes the massive unintended consequences likely to come from the bill, and highlights how this is an issue outside of any standard political spectrum. This isn't an issue about political viewpoints. It's an issue about fundamental values and the belief that censorship is wrong.